RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01238
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041229

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Unit Supply Specialist, medically separated for “bilateral shoulder pain” with a disability rating of 0%.  

CI CONTENTION:  Current condition supports a higher rating.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting or non-compensable.  Any conditions outside the panel’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition(s) at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs (VA), operating under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040914	VARD - 20050216	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shoulder Pain	5099-5003	0%	Status Post Left-Shoulder Surgery for Anterior Inferior Labral Injury	5201	20%	20040929	
			Right Shoulder Condition	5202	NSC		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Bilateral Shoulder Pain.  The PEB combined the left and right shoulder conditions as a single unfitting condition analogously coded 5099-5003 and rated 0%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the bilateral shoulders condition are presented with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right-hand dominant CI injured his right shoulder and left shoulder in June 2000 during an airborne operation in which he landed on both shoulders.  Radiographic studies showed a left shoulder dislocation.  The CI had left shoulder surgeries for pain and instability in August 2001 (arthroscopy with capsular heat shrinkage), and on 19 May 2003 (open Bankart reconstruction, and arthroscopy).  The CI complained of right shoulder dislocation and pain beginning in July 2002 (commander’s statement) and an orthopedic evaluation was documented in March 2003.  

At the 8 April 2004 orthopedic evaluation, 9 months prior to separation, the CI complained of bilateral shoulder pain and difficulty with overhead motions.  Range of motion (ROM) was pain limited in abduction and forward flexion (as charted below) and there was moderate scapular winging bilaterally.  There was positive anterior apprehension (an instability sign) and positive sag left greater than right (asymmetry/drooping; often associated with weakness).  The diagnoses were post-surgical pain left shoulder and instability right shoulder.  

During the 23 June 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported dislocation of both shoulders with pain and reported two surgeries on his left shoulder.  The physical examination showed decreased ROM and pain with ROM for the right and left shoulder with the left shoulder worse than the right shoulder.  The summary of defects and diagnoses stated “left shoulder pain, limited ROM secondary to pain,” and “right shoulder pain secondary to instability.”  

The 23 June 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of recurrent dislocations and chronic pain of both shoulders.  X-rays of the left shoulder showed evidence of an old injury and surgical repair of the anterior glenoid labrum; however the right shoulder was normal.  The physical examination showed both the left and right shoulders demonstrated “decreased range of motion with extreme pain with passive as well as active motion with the left greater than the right.”  The diagnoses were recurrent right shoulder dislocation secondary to shoulder instability with anterior inferior direction and chronic bilateral shoulder pain, left greater than right.  

The 25 June 2004 orthopedic specialist’s evaluation of the right shoulder, 6 months prior to separation, noted deep right shoulder tenderness anteriorly, a positive apprehension sign (instability sign and guarding), a 1.5 cm sulcus sign (inferior instability), and between 25 and 50% anterior translation (loose movement) with anterior drawer test (instability and loose motion) and abduction with external rotation.  The diagnosis was right shoulder multi-directional instability.  

The 1 July 2004 physical therapy (PT) ROMs for the MEB, requested for left and right shoulder pain and dislocations, documented left shoulder pain with motion and limited active ROMs as charted below.  Active ROM was less than passive ROM for left and right flexion, right abduction, and right external rotation.  

At the 29 September 2004 VA Compensation and Pension (C&P) evaluation, 3 months before separation, the CI reported pain in both shoulders but left more than right.  X-rays of the left shoulder showed evidence of previous surgical repair for an anterior inferior labral injury; however, X-ray findings of the right shoulder were normal.  The physical examination showed “considerable limitation in ROM for the left shoulder.”  There was no further limitations due to pain, weakness, lack of endurance, fatigue or incoordination.  

The ROM evaluations in evidence which the panel weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Shoulder ROM
(Degrees)	Ortho ~9 Mo. Pre-Sep	PT/MEB/Ortho ~6 Mo. Pre-Sep	VA ~3 Mo. Pre-Sep	
	Left	Right	Left	Right	Left	Right	
Flexion (180 Normal)	85	170	85	140	110	180	
Abduction (180)	90	170	80	90	90	180	
Comments	Painful motion; bilateral scapular winging	Painful motion	Passive abduction 100 degrees; loose movement		No painful motion	
§4.71a Rating	20%	10%	20%	20%	20%	0% (VA NSC)	

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the shoulders 0%, analogously coded 5099-5003 (degenerative arthritis), citing passive ROM for the right shoulder at 100 degrees abduction [passive] and 80 degrees of abduction for the left shoulder, with left sided abduction limited by pain (with likely application of AR 635-40, B-29 and/or the US Army Physical Disability Agency pain policy).  The VA rated the left shoulder condition 20%, coded 5201 (arm limitation of motion), based on the C&P examination 3 months before separation, citing 90 degrees of abduction, and limitation of arm motion at shoulder level.  The VA did not service-connect the right shoulder condition, based on the same examination.  

The left shoulder had multiple surgeries and limitations and was adjudged as separately unfitting.  Right shoulder complaints started prior to MEB initiation and both shoulders were considered to fail retention standards (recurrent right shoulder dislocation…, and chronic bilateral shoulder pain …).  The shoulders were implicated by the NARSUM and the commander’s statement and profiled (right and left shoulder pain).  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled right shoulder condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting left and unfitting right shoulder conditions at the time of separation.  

Regarding the left shoulder condition, the 20% rating for the non-dominant arm requires motion limited to “at shoulder level” and examinations reflected this degree of active ROM limitation.  There was no malunion with marked deformity or frequent episodes of recurrent dislocation of the humerus and guarding of all movement to justify a higher rating under the 5202 code (humerus, other impairment of), and no higher rating available under the 5203 code (clavicle or scapula, impairment of).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the left shoulder condition, coded 5201.  

Regarding the right shoulder condition the panel deliberated the probative value of the disparate examinations in evidence.  Although the VA examination was closest to separation, it did not document any testing for shoulder instability or scapular motion, and was an outlier to the preponderance of the examinations in the STR.  Based on the instability and loose motion documented in the STR, the possibility of pre-separation improvement was unlikely.  The panel consensus was the orthopedic examinations had the greatest probative value, and that the PT ROM was also an outlier to the remainder of the right shoulder ROMs in evidence.  
The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence (aside from the PT evaluation) demonstrated motion above this level for the right shoulder.  However, the panel majority agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion) from the specialist’s evaluations, MEB, and NARSUM examinations, and/or from the findings of right shoulder multidirectional instability (laxity, approaching loose motion) from the orthopedic examinations.  There was insufficient evidence of recurrent dislocation of the humerus, moderate deformity or dislocation or nonunion of the clavicle or scapula with consistent loose movement to justify the next higher 20% rating under the 5202 (humerus, other impairment of) or 5203 (clavicle or scapula, impairment of) codes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right shoulder condition, analogously coded 5299-5203.  

BOARD FINDINGS:  In the matter of the bilateral shoulder condition, the panel unanimously recommends that each joint be separately adjudicated as unfitting; and rated as follows:  an unfitting left shoulder condition coded 5201 and unanimously rated 20%, and an unfitting right shoulder condition, coded 5299-5203 and by a majority vote rated 10%, both IAW VASRD §4.71a.  The single voter for dissent recommended a rating of 0% coded 5299-5203 for the right shoulder condition, and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Shoulder Pain	5201	20%	
Right Shoulder Pain	5299-5203	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160928, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170018957, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to recharacterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The recharacterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency.

	A copy of this decision has also been provided to the Department of Veterans Affairs].

Sincerely,	
Enclosure